The Ninth Circuit Court of Appeals today released an opinion in CLARK v. TIME WARNER, No. 07-55794, a federal appeal. The panel consisted of Alex Kozinski, Chief Judge, Diarmuid F. O’Scannlain, and William A. Fletcher, Circuit Judges.

O’SCANNLAIN, Circuit Judge:
We must decide whether the doctrine of primary jurisdiction permits a district court to refer a claim raising a novel and technical question of federal telecommunications policy to the Federal Communications Commission for its consideration in the first instance. I Time Warner Cable (”TWC”) is one of the largest cable operators in the United States. Among other products and services, TWC markets “Digital Phone,” a bundle of local and long distance calling services that utilize Voice over Internet Protocol (”VoIP”) technology. VoIP uses the Internet to transmit telephone signals rather than using the traditional public switched telephone network (”PSTN”). As such, VoIP has the capacity to transmit voice and data streams simultaneously, whereas PSTN-based connections only have the capacity to transmit one signal at a time. Appellant K. Clark maintained two separate PSTN phone lines in her home, one serviced by Vonage, the other serviced by Verizon. On February 24, 2007, Clark received a telephone call from a TWC sales representative soliciting her to switch over to TWC’s Digital Phone package. Clark, initially intrigued, conversed with the salesperson, who at one point indicated that Digital Phone offered a six-hour backup that would allow Clark to continue making calls and to dial 9-1-1 in the event her cable was disconnected. Clark was later transferred to a second sales representative who corrected the false assertion made by the first, explaining to Clark that Digital Phone did not offer any backup system at all. In response to this news, Clark informed the sales representative that she was not interested in TWC’s service and hung up the phone. . . .

The Ninth Circuit Court of Appeals today released an opinion in DELAWARE VALLEY SURGICAL SUPPLY INC. v. JOHNSON & JOHNSON, No. 08-55105, a federal appeal. The panel consisted of Alfred T. Goodwin, Harry Pregerson, and Dorothy W. Nelson, Circuit Judges.

D.W. NELSON, Senior Circuit Judge:
This appeal stems from a disagreement between two different groups of plaintiffs about who has standing as a “direct purchaser” to bring a claim under federal antitrust laws. One group consists of Delaware Valley Surgical Supply Company, Inc., (”DVSS”) and Niagara Falls Memorial Medical Center (”Niagara”). They are both entities that bought medical supplies directly from Johnson & Johnson and its subsidiaries (”J&J”). The other plaintiff is Bamberg County Memorial Hospital & Nursing Center (”Bamberg”), a hospital that had a contract with J&J setting a list price for the purchase of medical supplies, but that ultimately purchased its J&J products through a separate contract with a third-party distributor. DVSS, Niagara, and Bamberg all brought independent antitrust claims against J&J. The district court consolidated the three cases. Before reaching the merits of the underlying antitrust claims, the district court ruled that Bamberg lacked standing to assert its claim against J&J. The district court reasoned that because Bamberg bought its supply through a distributor and not from J&J, it was not a “direct purchaser.” Bamberg and J&J both contest that decision through this interlocutory appeal. We affirm the order of the district court, and hold that Bamberg lacks standing to pursue an antitrust claim under a direct purchaser theory. FACTUAL AND PROCEDURAL BACKGROUND Three plaintiffs brought antitrust actions against J&J arising from the manufacturer’s contracts with hospitals and their group purchasing organizations (”GPOs”). This litigation involves two categories of products: sutures used to close wounds and endomechanical products (”endos”) used primarily for minimally invasive laparoscopic surgery. The plaintiffs . . .

The Ninth Circuit Court of Appeals today released an opinion in NEGRETE v. ALLIANZ LIFE INSURANCE COMPANY OF NORTH AMERICA,, No. 07-55505, a federal appeal. The panel consisted of Harry Pregerson, Dorothy W. Nelson, and Ferdinand F. Fernandez, Circuit Judges.

FERNANDEZ, Circuit Judge:
Vida F. Negrete filed this class action lawsuit against Allianz Life Insurance Company of North America. Allianz appeals a district court order that effectively prevents it from proceeding with any settlement negotiations on similar class action claims raised in any federal or state court without first obtaining permission from Negrete’s Co-Lead Counsel, and from finalizing a settlement in any other court “that resolves, in whole or in part, the claims brought in [the Negrete] action,” without first obtaining the district court’s approval. We reverse. BACKGROUND On September 21, 2005, Vida F. Negrete filed a class . . .

The Ninth Circuit Court of Appeals today released an opinion in FOREST GROVE SCHOOL v. T.A., No. 05-35641, a federal appeal. The panel consisted of Pamela Ann Rymer, Susan P. Graber, and Carlos T. Bea, Circuit Judges.

GRABER, Circuit Judge:
Defendant T.A., a former student of Plaintiff Forest Grove School District, appeals the district court’s denial of reimbursement under the Individuals with Disabilities Education Act (”IDEA”), 20 U.S.C. §§ 1400-1482, for his expenses in attending a private school. We must decide whether a student who never received special education and related services from a school district nevertheless may recover reimbursement for the costs of private school education. We conclude that such a student is not barred as a matter of law from receiving reimbursement. In the IDEA, Congress conferred broad discretion on the courts to provide appropriate equitable relief, including reimbursement for attendance at a private school. Later amendments clarifying the relevant considerations for those students who previously received special education and related services do not apply to students, like T.A., who never received special education and related services. Because the district court applied an improper legal framework to T.A.’s claim for reimbursement under general principles of equity, we reverse and remand for reconsideration. FACTUAL AND PROCEDURAL HISTORY T.A. was born on September 11, 1985. He resided at all relevant times in the Forest Grove School District. T.A. was . . .

RYMER, Circuit Judge, dissenting:
I part company because I don’t believe this is a Burlington case calling for equitable reimbursement, or that we should adopt the reasoning of the Second Circuit in Frank G. v. Board of Education of Hyde Park, 459 F.3d 356 (2d Cir. 2006). I read Burlington, Florence County School District Four v. Carter, 510 U.S. 7 (1993), 20 U.S.C. § 1412(a)(10)(C), and the regulations, as indicating that tuition reimbursement for unilateral private placements is available under principles of equity only when FAPE was at issue before the child was withdrawn from public school and the school district had improperly denied a free and appropriate education. This was true in each of these cases, yet is not true here. Even if Congress meant the 1997 amendments to preserve equitable reimbursement where the child has never been enrolled in special education and related services, I doubt that it intended to expand the principle. At most, it seems to me, § 1415(i)(2)(C) carries forward the pre-1997 law on equitable relief. And as I see it, this case does not fall within the Burlington heartland because FAPE was not at issue when T.A.’s parents unilaterally withdrew him from the public sector. In 2001, while T.A. was in public school, T.A.’s mother explicitly agreed with the school district’s assessment that T.A. was not eligible for special education services. T.A. was taken out of public school and enrolled in a three-week wilderness program because he had begun to binge on marijuana and had run away from home in early 2003. No Independent Education Plan (IEP) had been requested, proposed, or disputed before then. Likewise, no IEP was on the table prior to. . .

The Ninth Circuit Court of Appeals today released an order in LEVINA v. SAN LUIS COASTAL, No. 06-55179, a federal appeal. The panel consisted of Diarmuid F. O’Scannlain and Milan D. Smith, Jr., Circuit Judges, and Michael W. Mosman, District Judge.

The petition for rehearing is GRANTED. The opinion filed on December 28, 2007, is withdrawn. A superseding memorandum disposition will be filed concurrently with this order. Further petitions for rehearing or rehearing en banc may be filed. *The Honorable Michael W. Mosman, United States District Judge for the District of Oregon, sitting by designation. 4269 . . .

The Ninth Circuit Court of Appeals today released an opinion in CAMACHO v. BRIDGEPORT FINANCIAL, No. 07-15297, a federal appeal. The panel consisted of Stephen Reinhardt, Melvin Brunetti, and Raymond C. Fisher, Circuit Judges.

BRUNETTI, Circuit Judge:
Rita Camacho (Camacho) appeals the district court’s order awarding her $77,069.36 in merits fees, costs, and fees-onfees. The district court determined Camacho’s award by multiplying the number of hours worked by each of her three attorneys by an hourly rate of $200, by compensating Camacho for costs, and by awarding Camacho a “flat award” of $500. We have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand. I. Facts and Proceedings Below In the underlying action, Camacho, a debtor, sued Bridgeport Financial, Inc. (Bridgeport Financial), a debt collector, in . . .

The Ninth Circuit Court of Appeals today released an amended order in MOLSKI v. EVERGREEN DYNASTY, No. 05-56452, a federal appeal. The panel consisted of Jerome Farris and Ronald M. Gould, Circuit Judges, and Kevin Thomas Duffy, District Judge.

The order denying the Petition for Rehearing En Banc in this case, filed on April 7, 2008, is amended as follows:
In the second paragraph, the first full sentence is deleted and is replaced with the following text: “The full court has been advised of Plaintiff/Appellant’s Petition for Rehearing En Banc, and a judge of this court requested a vote on whether this case should be reheard en banc; however, a *The Honorable Kevin Thomas Duffy, Senior United States District Judge for the Southern District of New York, sitting by designation. 4217 . . .

The Ninth Circuit Court of Appeals today released an amended order in FLORES v. HORNE, No. 07-15603, a federal appeal. The panel consisted of Betty B. Fletcher, Marsha S. Berzon, and Johnnie B. Rawlinson, Circuit Judges.

The full court has been advised of the petitions for rehearing en banc. No judge of the court has requested a vote on en banc rehearing. See Fed. R. App. P. 35(f). Judges Berzon and Rawlinson voted to deny the petitions for rehearing en banc and Judge Fletcher so recommended. . . .

The Ninth Circuit Court of Appeals today released an order in SAFFON v. WELLS FARGO & CO., No. 05-56824, a federal appeal. The panel consisted of Alex Kozinski, Chief Judge, Johnnie B. Rawlinson, Circuit Judge and Miriam Goldman Cedarbaum, Senior District Judge.

KOZINSKI, Chief Judge:
We consider whether an ERISA plan administrator properly terminated benefits because of its beneficiary’s failure to produce evidence of her disability. Facts Graciela Saffon has long suffered from degeneration of her cervical spine, a condition confirmed by repeated MRI scans and X-rays. After a car crash aggravated her condition in December 2001, Saffon quit her desk job at Wells Fargo Bank and applied for disability benefits from defendant, the Wells Fargo & Co. Long Term Disability Plan. The Metropolitan Life Insurance Company (MetLife), which served both as the Plan’s insurer and as its claims administrator, promptly began to pay her short-term disability benefits. Saffon eventually applied for long-term disability benefits, which MetLife granted. After paying long-term benefits for a year, MetLife informed Saffon that she “no longer m[et] the definition of disability” and terminated her long-term benefits. Saffon then unsuccessfully availed herself of MetLife’s administrative appeals process. Saffon sued the Plan under 29 U.S.C. § 1132(a), seeking payment of withheld benefits, attorney’s fees and a declaration that she is disabled. After a bench trial on the administrative record, the district court concluded that the Plan hadn’t abused its discretion and denied Saffon any relief. Standard of Review [1] 1. We review benefits denials de novo “unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits;” if the plan does grant such discretionary authority, we review the administra. . .

The opinion filed January 9, 2008, appearing at 511 F.3d 1206 (9th Cir. 2008), is ordered amended as follows:
Page 1215, Column 2, Line 38 After <disabled under the terms of the Plan. > insert a footnote stating: <In its petition for rehearing, Wells Fargo claims that our precedents forbid the district court from hearing additional evidence. E.g., McKenzie v. General Telephone Co. of Cal., 41 F.3d 1310, 1316 (9th Cir. 1994) (error for district court to hear additional evidence of disability not presented to plan administrator); Taft v. Equitable Life Assur. Soc’y, 9 F.3d 1469, 1472 (9th Cir. . . .

The Ninth Circuit Court of Appeals today released an order in MUNSON v. DEL TACO, INC., No. 06-56208, a federal appeal. The panel consisted of Susan P. Graber and Marsha S. Berzon, Circuit Judges, and Claudia Wilken, District Judge.

We respectfully ask the California Supreme Court to exercise its discretion and decide the certified questions below, pursuant to California Rule of Court 8.548. The resolution of these questions will determine the outcome of this appeal, and no clear controlling California precedent exists. See Cal. R. Ct. 8.548(a). We are mindful that our request adds to the demanding caseload of the California Supreme Court, but this case raises difficult questions of California law on which trial courts, both state and federal, are sharply divided. The questions have broad implications for disability rights under the Unruh Civil Rights Act (”Unruh Act”), Cal. Civ. Code § 51, and for countless lawsuits alleging violations of the Unruh Act. Comity and federalism counsel that the California Supreme Court, rather than this court, should answer these questions. 1. Administrative Information Ninth Circuit Case No. 06-56208, KENNETH MUNSON, Plaintiff-Appellee v. DEL TACO, INC., Defendant-Appellant. Counsel for Kenneth Munson: Mark D. Potter and Russell C. Handy, Center for Disability Access, LLP, 100 E. San Marcos Blvd., Suite 400, San Marcos, California 92069. Counsel for Del Taco: Scott J. Ferrell, Lisa A. Wegner, and Melinda Evans, Call, Jensen & Ferrell, 610 Newport Center Drive, Suite 700, Newport Beach, California 92660. Del Taco is deemed the petitioner in this request because it appeals the district court’s rulings on the issues identified below. 2. Questions Certified . . .